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OSHA Trumps ADA in Drug and Alcohol Testing

By Mark A. Lies II

Editor’s note – Mark A. Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw, LLP. He specializes in occupational safety and health law as well as related personal injury and employment law litigation. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.

As most employers are aware, employee impairment at the workplace due to drug and alcohol use is a chronic problem. By some studies conducted of workplace accidents, 20 percent or more of employees at the typical workplace are impaired due to drug and alcohol usage on any given day. Post accident drug and alcohol tests confirm the significant number of fatalities and serious injuries that have been caused by such impairment. A recent federal court decision, Equal Employment Opportunity Commission (EEOC) v. United States (US) Steel Corporation, et al., Civil Action No. 10-1284 (February 20, 2013), gives employers added support for random drug and alcohol testing to combat these safety risks.

The case involved a US Steel facility in Clairton, PA, which had established a random drug and alcohol testing program for its probationary employees at its coke production plant. The company’s goal was a “drug- and alcohol-free workplace.” A probationary employee was selected for a random breath alcohol test that indicated the presence of alcohol. The employee claimed the positive test result was attributable to her diabetic condition. She was terminated and filed a charge with the EEOC claiming discrimination under the Americans with Disabilities Act (ADA). The EEOC brought a court action against the company claiming that the random alcohol test violated the ADA.

The ADA does not permit employers to conduct medical examinations of employees once the employee has commenced employment, unless the employer can establish that the medical examination is “job related and consistent with business necessity.” The EEOC claimed that the company had not met its burden to permit such testing.

The court disagreed and found that the company had proved that the coke plant was an extremely dangerous workplace given the nature of the equipment, molten coke, and the various employee job duties in the vicinity of the operation.

The court also recognized that the drug and alcohol testing was related to legitimate safety concerns, including the obligation under the Occupational Safety and Health Administration’s (OSHA’s) General Duty Clause, to protect employees against hazards to their safety and health. The court held “there is no question that maintaining workplace safety is a legitimate and vital business necessity.”

After an extensive analysis, the court granted the company’s motion for summary judgment dismissing the lawsuit.

Conclusion
This decision is meaningful as it provides strong support for employer efforts to maintain workplace safety by eliminating injuries due to drug and alcohol impairment. Employers should consider the efficacy of such programs as a means of reducing such injuries and a means to prove to OSHA that they are taking all reasonable means to eliminate accidents caused by such impairment.

There is one important caveat regarding such programs. Where this decision relates to federal law, employers must also determine whether there are any state law restrictions on such programs and tailor those programs to comply accordingly.